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Focus: Complaints cause assessors to withdraw from cases

October 15, 2012|Written By Judy Van Rhijn

In the highly emotive areas of workplace safety, insurance, and family law, assessments by independent experts can be extremely valuable in the decision-making process. But those who prepare the reports often face regular complaints aimed at undermining their credibility.

‘There is an opportunity for us to reach across the table to all the colleges and take a lead role in trying to establish guidelines and best practices,’ says Steven Benmor.

The complaints have had such a chilling effect that very few health practitioners are now willing to prepare the reports. In response, the Heath Professions Appeal and Review Board recently called for guidelines and solutions to address the problem. A new working group of lawyers and health professionals is now answering that call.

It was the targeting of Arthur Leonoff, a highly seasoned and reputable psychologist, by disgruntled litigants that triggered the current efforts to address the problem. His 18-month ordeal, during which the College of Psychologists of Ontario not only accepted the vexatious complaint but also refused to discontinue its investigation following its withdrawal, has given the working group the set of facts it needs to highlight the problem.

Steven Benmor, chairman of the Ontario Bar Association working group on assessments and frivolous complaints, notes the issue affects many areas. “The Leonoff case raised the attention of the family law section and caused us to reach out to the other sections to see if they were experiencing similar problems. The answer was yes. This area of baseless complaints against health professionals touches on many areas of law — health, administrative, family, worker’s compensation, and insurance — and it will only affect them more as we move forward.”

Benmor has observed that if the complaint arises before the opinion has been relied on, it can cause experts to pull their punches and not give a full assessment. “If the complaint is made after the fact, the next time the health practitioner is asked to be involved, they’ll say no thanks. The effect is that less people want to go into this area of practice, and those who do charge more, take longer, and are more cautious in delivering their opinion. This increases the cost to the government and the litigants.”

John Service, executive director of the Ontario Psychological Association, says third-party assessments in workers’ compensation, motor vehicle accident, and child custody cases have been an important part of his profession’s services for decades but notes very few people in Ontario now do them. “The psychologist’s report often becomes the focus of the litigation and complaints are made as a tactic,” he says.

According to Service, this isn’t a pocketbook issue for psychologists. “The ratio of one psychologist to 3,000 residents in Ontario means that there is plenty of less risky work available. We have developed very good psychological tests that are excellent tools for determining cognitive damage or the psychological impact of an injury that no one is using. Who’s the real loser? The people who need that information and support.”

The most frustrating aspect for some is that there’s already legislation in place to address the problem. In 2007, the provincial government passed amendments to ss. 26(4) and (5) of the health professions procedural code that permit the regulatory colleges to dismiss complaints that are frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. “They have the power to weed them out, but the colleges are not exercising that power,” says Benmor.

“The law can say what it says, but often what it needs to be enforced is for a judge to take the legislation and make a working model test with a list of items that need to be considered to implement it.”

While Benmor is hopeful stakeholders can work out a collaborative solution over the next few months without the matter having to reach a courtroom, there are some cases already moving through the system.

Leonoff, for example, has taken the role of legal guinea pig by pushing the issue into the court system with the pro bono assistance of Fay Brunning, a health law practitioner at Sack Goldblatt Mitchell LLP in Ottawa. After the college found there was no basis for the complaint, Brunning appealed the process of the decision to the appeal and review board. In April 2012, it delivered a decision confirming the college’s finding but merely recommending that it revisit the issue without addressing the problem itself.

Brunning isn’t happy with the decision and is considering whether to apply for judicial review. In the meantime, Leonoff has successfully defended a similar complaint at the Small Claims Court, where Deputy Judge Harold McNeely found that, with the family court having appointed him, he had protection from suit through the doctrine of immunity. The ruling adds to a small but growing number of cases dealing with the issue.

“The line between the courts and the colleges needs to be made more clear,” says Brunning.

“But getting a case to the court is a long and expensive process. If the psychologist wins and the complaint is dismissed, which almost all of them are, there is no appeal to the board and no appeal to the Divisional Court.

Only at Divisional Court would the two systems finally meet.”

In the meantime, the College of Psychologists has struck a committee to look at the matter. But at this stage, its mandate is merely to advise members about the situation and not examine its gatekeeping function under the legislation.

There’s also discussion about having it and other colleges participate in the OBA working group in the search for a solution outside the courts. “There is an opportunity for us to reach across the table to all the colleges and take a lead role in trying to establish guidelines and best practices,” says Benmor.

For his part, Service believes psychologists will return to this type of work if they feel those involved have addressed the situation. “They understand extremely well the impact these assessments can have, but it will take some time to turn it around.”

Mr. Benmore complains about the College of Psychologists investigating baseless and vexatious complaints. How does one establish that a complaint is frivolous and vexatious without a thorough investigation?

Marek has it right on the money. Once the alliances to paying parties are taken out the mix, a report might have a greater chance to be truly independent. It is the influence of the referral sources that bias the reports, without that the report might truly be of assistance to MVA victims whose purpose is achieving recovery not building a case that will generate income for the legal community.

The assessment process is biased by its very nature because there is an expectation from the referral source to provide favourable opinion as they will not refer again.The solution is to establish an independent fund to which insurance companies and lawyers will contribute and a roster of qualified assessors who will take cases without having prior knowledge of to whom it is directed or having any contact with the referalsource.This will be clearly different process than asking apsychologist to do an assessment for specific purposes.

Wouldn't reaching across the table to establish guidelines and best practices need to include the victims who are the subject of the assessments and the source of these complaints? It's common knowledge that auto insurance claimants are often subjected to substandard reports, this new thinking labels all their complaints as baseless and would create a free for all scenario for the assessors, whether they be right or wrong. A greater number of complaints also means that the abuse of these patients or clients is on the rise.

A little balance would have been nice. What about rogue psychological assessors who proffer endless unqualifed opinions in chronic pain cases? Ditto psychologists proffering unqualified opinions in brain injury cases? I see no mention of them. Its not for nothing that the CSME recently warned its member assessors about continuing to proffer "amateurish, biased and fraudulent" IMEs/IEs. This column advances the same "protect the expert" line of reasoning the CMPA trotted out in Worthman v AssessMed. Heaven forbid we purge the rogues for fear of causing an "expert chill"! Better to pretend the problem is all about unfair attacks made by disgruntled subjects of stellar assessments. This column tells only half the story - the half that favours the assessors. By leaving out the other half - the half that could have chronicled the proliferation of rogue assessors/assessments - it has happily villified the subjects of crappy assessments and painted them as "disgruntled" lunatics. T

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